Appeal of ALICE STITH, on behalf of JAZMIN STITH, from action of the Board of Education of the Tuckahoe Common School District regarding residency.

Decision No. 16,357

(May 11, 2012)

Ingerman Smith, L.L.P., attorneys for respondent, Mary Anne Sadowski, Esq., of counsel

KING, JR., Commissioner.--Petitioner, a district resident, appeals the determination of the Board of Education of the Tuckahoe Common School District (“respondent”) that her granddaughter, Jazmin, is not a district resident.  The appeal must be dismissed.

In August 2011, Jazmin’s father (petitioner’s son), Anthony Stith, attempted to register Jazmin in the district’s schools.  He submitted the district’s Custodial Affidavit, in which he stated that Jazmin had been living with him at Bishops Lane in Southampton, petitioner’s address, since August 2011 and intended to be there permanently for the next two school years.  He also submitted a Custodial Affidavit completed by Jazmin’s mother, a Virginia resident, dated the same day, in which she stated that Jazmin had been living with her in Virginia since birth, but that she was temporarily “allowing [Jazmin] to complete her 11th & 12th grade school year in NY.”  The mother specifically stated that she was not giving up custody and also supplied a handwritten letter notarized on August 8, 2011, giving Jazmin’s father power of attorney “[i]n any and everything [Jazmin] needs to be cared for.  He has the right to make decisions on taking her to the doctor, enrolling her in school.”

When the district requested documentation from Mr. Stith to verify his residency, he presented an unnotarized letter from a purported landlord that indicated that petitioner and Jazmin resided on Bishops Lane, albeit at a different number on the street; Mr. Stith was not included as a member of the household.  The next day, August 30, 2011, the district’s residency officer visited the Bishops Lane address.  Neither Jazmin nor Mr. Stith was present.  However, petitioner informed the residency officer that Jazmin was residing with her there and that Mr. Stith was living outside the district in Riverhead with his girlfriend and newborn son.  The residency officer subsequently observed Bishops Lane on six mornings between August 31, 2011 and September 5, 2011 and never observed Mr. Stith’s vehicle there.

By letter dated September 8, 2011, a school business official informed Mr. Stith that she did not believe the family resided within the district because the landlord did not include him as a member of the household and the landlord’s letter was not notarized, and that since the family did not reside in the district, Jazmin would be excluded from attending school through respondent’s district as of that date.[1]  On September 12, 2011, Mr. Stith met with the superintendent, advised him that he lived at Bishops Lane, and presented a revised landlord affidavit that included him as a member of the household living at that address.  Based on this new information, the superintendent admitted Jazmin to school through the district as a resident.

The residency officer, however, continued to conduct surveillance.  On nine dates between September 14 and September 23, 2011, Mr. Stith’s vehicle was observed once at an address in Riverhead and once heading in the direction of Bishops Lane from school, but never at Bishops Lane.  Based on this information, the superintendent again notified Mr. Stith by letter dated September 23, 2011 that he would recommend to respondent on September 26, 2011, that Jazmin be excluded from attending school through the district.

Mr. Stith met again with district officials in early October 2011.  At this meeting, Mr. Stith admitted that he was not living at Bishops Lane, but was living in Riverhead.  Mr. Stith also asserted that he intended to return permanently to Bishops Lane.  The district permitted Jazmin to remain enrolled in school through the district.  However, the residency officer continued to conduct surveillance at Bishops Lane during October and November 2011.  In 14 additional surveillance visits between October 3, 2011 and November 16, 2011, Mr. Stith’s vehicle was never observed at Bishops Lane.  Accordingly, by letter dated November 16, 2011, the superintendent informed Mr. Stith that on November 28, 2011 he intended to recommend to respondent that Jazmin be excluded from school through the district because district officials had been unable to confirm that he had moved back into the district.

Mr. Stith requested yet another meeting, held on November 20, 2011, at which he claimed to be living at Bishops Lane.  District officials again permitted Jazmin to remain in school and continued surveillance.  The surveillance again revealed no sighting of Mr. Stith’s vehicle at Bishops Lane on three mornings between November 28, 2011 and December 6, 2011.  By letter dated December 13, 2011, the superintendent notified Mr. Stith that Jazmin’s legal residence was determined to be in Riverhead with him, but that Jazmin would be permitted to continue attending school through the district until the end of the first semester.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 10, 2012.

Petitioner contends that she is responsible for Jazmin’s care and custody, that Jazmin has been residing with her full time since June 2011, and intends to reside there for two years.  Petitioner asserts that Jazmin has been attending respondent’s Southampton High School since September 2011, and that it would be detrimental to her education and well being for her not to continue there.

Respondent asserts that the appeal must be dismissed for failure to state a claim upon which relief may be granted.  Respondent maintains that there has not been a total transfer of custody and control of Jazmin to petitioner, that Jazmin is living in the district temporarily and solely to take advantage of the schools made available to district residents.

Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

The presumption that a child resides with his or her parents or legal guardians can be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding, it is necessary to demonstrate that a particular location is a child’s permanent residence and that the individual exercising control has full authority and responsibility with respect to the child’s support and custody (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Wilson, 48 id. 1, Decision No. 15,773).

Generally, if parents or legal guardians continue to provide financial support for room, board, clothing and other necessities, custody and control has not been relinquished (seeCatlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).  Similarly, where parents or legal guardians retain control over important issues such as medical and educational decisions, total control is not relinquished (Appeal of Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of France-Rayson, 48 id. 142, Decision No. 15,820).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In this case, petitioner contends that she is “responsible for Jazmin’s care and custody,” and that she provides Jazmin with food, shelter and clothing.  She also maintains that Jazmin’s “parent” surrendered parental control to her.  However, the record contradicts in several respects petitioner’s contention that either of Jazmin’s parents surrendered parental control to her.

First, to the extent that Jazmin’s mother surrendered anything, she did so to Jazmin’s father, not petitioner.  In fact, Jazmin’s mother merely signed a notarized letter giving power of attorney, not parental control, to Jazmin’s father.  Moreover, in the mother’s Custodial Affidavit, she specifically stated that she was not giving up custody and that Jazmin’s living arrangement was intended to be temporary.  Second, to the extent petitioner contends that her son, Mr. Stith, is the “parent” who allegedly surrendered parental control to her, the record also fails to support that contention.  Petitioner admits that her son also supports Jazmin and is involved in the parenting of his daughter.  Notably, it was also Mr. Stith, not petitioner, who initially attempted to register Jazmin in respondent’s high school in August 2011.

Petitioner has submitted no evidence at all to support her appeal.  Accordingly, petitioner has failed to meet her burden of proof that parental custody and control over Jazmin has been transferred to her; therefore, the presumption that Jazmin resides with her parent, Mr. Stith in this case, has not been rebutted.  Mr. Stith, however, does not reside within the district.  The district afforded him three opportunities, in September, October and November 2011, to substantiate his residence within the district and to rebut its surveillance, which revealed that neither he nor his car was ever present there.  Indeed, Mr. Stith admitted that he was living in Riverhead, and despite the district’s extended leniency, he failed to provide evidence of his residence in or return to the district.

Finally, I note that the record indicates that Jazmin is residing with petitioner solely to take advantage of the schools made available to district residents by contract.  Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698). 

Thus, based on the record before me, I cannot conclude that respondent’s determination that Jazmin is not a district resident was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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